Getting Asian nations like India, China, and Japan to support an international code of conduct for space activities may require changes to address space development issues that are of particular interest to these nations. (credit: ISRO)

What’s in a code? Putting space development first

by Peter GarretsonMonday, April 7, 2014

[ Editor's Note: This essay was written for and is an excerpt of “Awaiting Launch: Perspectives on the Draft ICoC,” edited by Rajeswari Pillai Rajagopalan and Daniel A. Porras (forthcoming), Observer Research Foundation, New Delhi at the following website: www.orfonline.org." ]

It is very likely in the interests of all who benefit from space—individuals, businesses, and states—to see the establishment of norms that “safeguard the continued peaceful and sustainable use of outer space for current and future generations,” that recognizes “space debris affects the sustainable use of outer space, constitutes a hazard to outer space activities” and seeks “to establish and implement policies and procedures to minimise the risk of accidents in space, collisions between space objects or any form of harmful interference with another State’s peaceful exploration, and use, of outer space”?1

To date, however, the draft “International Code of Conduct for Outer Space Activities” (ICOC) has yet to command widespread support in the international community sufficient for it to establish its intended “regime of transparency and confidence-building measures, with the aim of creating mutual understanding and trust, helping both to prevent confrontation and foster national, regional and global security and stability.“

But if the code is to truly become a broader instrument, it is absolutely critical that the space-capable Asian states, particularly China, India, and Japan, feel a sense of ownership over the code.

It was famously said by the fictional character Jack Sparrow: “The only rules that really matter are these: what a man can do and what a man can't do.”2 Applied to space security, this means that for a regime like the ICOC to be truly meaningful it must have the buy-in from the major actors who actually have the capability to do things in space. It is certainly meaningful that the code seems to have strong support in the EU, which contains several states capable of operating spacecraft and one state, France, capable of launch. It is also meaningful that the United States, while not willing to sign the draft originally formulated by the EU, is nevertheless encouraging its elaboration and negotiations into a form that it can sign.

But these states are already heavily invested in space, space services, the minimization of debris, and appear to have abandoned any ambition for kinetic anti-satellite weapons (ASATs). If the code was narrowly intended to stigmatize practices by space-capable states that would create long-lasting space debris such as the Chinese ASAT test, it appears to have already been a success. No similar test has been performed since, even by China.3 And it is now well-established that any such test would be costly and bring the censure of the world.

But if the code is to truly become a broader instrument, one that establishes a regime that creates a least-regret path toward the greatest flourishing of humanity-benefiting space activity—which is certainly in the interests of all states—it is absolutely critical that the space-capable Asian states, particularly China, India, and Japan, feel a sense of ownership over the code. For this to happen, these states must feel that they have materially shaped the code to reflect their interests. This is likely to be difficult because the problem these states have with the code is less with its content and more with the manner in which it came to them.

These states rightly perceive that they are legitimate, fully established powers on the international stage, as well as fully established spacefaring states, and that they deserve an equal voice in any rule-making. Moreover they are likely to feel that they have a disproportionate interest in such rule-making because they are the most affected by any such rule. Unlike the states of the EU, the Asian space powers exist outside a stabilizing regional security architecture. Instead they are faced with an anarchic environment with security concerns on all sides multiple security dilemmas leading to a need for “self-help.” Regrettably such self-help encourages similar actions from others, creating a multi-party security dilemma that worsens the situation for all.4 A non-legally binding instrument appears to constrain this self-help without providing the security of a binding regime. Unlike the Cold War space powers who tested, deployed, and then eschewed kinetic ASAT weapons as they became more invested and dependent upon space, the rising powers of Asia feel themselves technologically behind in an area that appears to provide some coercive or deterrent value, and have yet to reach an equivalent level of investment and a similar perception of dependence. Attempts to restrain such capabilities are seen as a form of imposition or “lawfare” in the context of a history of colonialism and imperialism. It is the perception of these states that essentially this code was developed without their input and then presented to them full cloth under some degree of pressure.

It is therefore unlikely that these powers are going to embrace the code without serious modification. The question is, “Can there be anything substantial to modify when the contents of the code appear to be fundamentally common-sense and unobjectionable?”

The answer is yes. The code requires substantial revision because serious errors of omission not only betray a lack of vision and fundamentally wrong focus, but fails to recognize the fundamental purposes and ambitions of all three Asian space powers as well as key ongoing trends shaping the domain.

Here is a list of seven deficits in the current code:

Space Development: The current draft fails to establish space development as a fundamental and perhaps primary purpose. This is not a minor point. While the original authors may see space and space programs through a securitized lens, this is not the view or purpose of the Asian space powers, who see space resources as key to sustainable development on Earth and seek a pro-growth, space-industrial agenda to expand humanity’s economic sphere at least into the inner solar system. The current draft hardly seems encouraging of an agenda for economic growth and growth of activity in space. This code seems focused on the world of today, protecting the investment in the small number of communication and surveillance satellites, rather than the needs of the world of tomorrow as articulated by the pioneers and visionaries of the Asian space programs who see not exploration or security as the raison d’être, but rather economic development:

“There are some who question the relevance of space activities in a developing nation. To us, there is no ambiguity of purpose. We do not have the fantasy of competing with the economically advanced nations in the exploration of the moon or the planets or manned space-flight. But we are convinced that if we are to play a meaningful role nationally, and in the community of nations, we must be second to none in the application of advanced technologies to the real problems of man and society.” - Dr. Vikram Sarabhai5 (dedication of Thumba to United Nations, February 2, 1968)6

“The Moon could serve as a new and tremendous supplier of energy and resources for human beings… This is crucial to sustainable development of human beings on Earth…Whoever first conquers the Moon will benefit first… As for China, it needs to adopt a strategy based on its concrete economic power and technology level… We are also looking further out into the Solar System-to Mars." - Ouyang Ziyuan, chief scientist of China's Moon exploration program7

Further, the paradigm informing all three Asian space programs is space industrial development. The language of the code stands in stark contrast to ambitions expressed by space pioneers and visionaries such as India’s Dr. APJ Kalam8, or China’s Professor Wang Xiji9, or recorded in Japan’s Basic Space Plan for Space Policy10, all of which see a vast expansion of on-orbit activities with vast Space-Based Solar Power Satellites at the center.

While drafters in the arms control communities in the EU and the US may see space and space programs through a “securitized” lens with a head-nod to exploration, the Asian space powers fundamentally see space and their space programs in terms of economic development.

In sharp contrast, the language of the current code speaks of sustainability more in the context of preserving the status quo than sustaining the exponential growth curve necessary to lifting billions out of poverty and improving their prosperity with the vast wealth of the heavens,11 overly securitized and largely tone-deaf to an ambitious agenda to use the vast energy and material resources of space to solve “the real problems of man and society” and provide vast abundance for all humanity.

And the abundance is truly vast. Industrialization of space as imagined by the visionaries of Asia’s space pioneers unlocks untold material and energy wealth. The scale of the energy wealth has been affirmed in the Pentagon’s Space-Based Solar Power Study, and more recently by the International Academy of Astronautics (IAA), headed by a former ISRO chairman. And the mineral wealth is staggering. As the NASA public website responsible for tracking near Earth asteroids states, “it has been estimated that the mineral wealth resident in the belt of asteroids between the orbits of Mars and Jupiter would be equivalent to about 100 billion dollars for every person on Earth today.” The code needs to anticipate humanity’s movement toward these vast material and energy resources, as is already happening in the entrepreneurial space community today.

For the code not to anticipate something so central to Asia’s vision for space is not a small matter. Such a code is likely to establish important incentives and understanding for the long term. If the language and purposes of the text do not establish development as a separate, co-equal, or even paramount end, it is unlikely to be encouraging of the agenda for economic growth at the heart of Asian space programs, and reinforce the disproportionate securitization of space.

While drafters in the arms control communities in the EU and the US may see space and space programs through a “securitized” lens with a head-nod to exploration, the Asian space powers fundamentally see space and their space programs in terms of economic development. Within the hierarchy of values, the Asian powers are likely to see the value of “space sustainability” less as an end in and of itself, and more as an enabling end to sustained economic development in general—whether it be for a significant near-term expansion in communications and remote sensing technology in support of the challenges of sustainable growth on Earth, or the vastly ambitious visions of Asia’s space visionaries. Similarly, the Asian space powers are likely to see the obligations in the code as more in their interests if they understand them as being a critical enabler to their larger planned programs of inclusive growth—toward which both their national and international policies are aligned—rather than in the context of arms control.

While the draft preamble mentions “activities of exploration and use of outer space for peaceful purposes,” the weak existence of the word “use” is completely inadequate, and the preamble and purpose should be modified.

A code that properly accounted for Asian equities would strongly assert the purpose of space activities: economic development and the expansion of mankind into the universe.

Human Survival and Human Habitat Expansion: A caricature of East and West is that the West is very short-term in its thinking, while in the East the history of millennia-spanning civilizations encourages a longer view and even fabled 100-year plans. From that perspective the code is also inadequate. If the benchmark is merely a code for the next five years, where the utility of space is limited to “bits and bytes,” it might be considered adequate from such a short-term perspective. But from a long-term perspective, from a civilizational perspective, it is totally inadequate. The current draft fails to establish survival and human habitat expansion as a purpose. While some believe this may not be possible, there are many—such as the National Space Society (NSS), one of the largest international grassroots space advocacy organizations—for whom this is the fundamental purpose of a civil space program.

The weak use of “preservation of the environment, disaster management, the strengthening of national security” in the plan fails to capture our shared interest in survival and our mutual duty to cooperate in finding ways to protect against threats that originate in outer space such as asteroids and comets (“planetary defense”), or protection of human and other bodies from contamination of foreign/non-native biological organisms (“planetary protection”). A code affirming of these ends would include language about the safety of the biosphere and the potential impacts from asteroids and comets and affirm that long-term sustainability of outer space activities includes the long-term goal of human habitat expansion and the expansion of our economic sphere to the farthest reaches of outer space.

Minor Planetary Bodies: The code is also inadequate in its treatment of conduct with respect to minor planetary bodies and their derivatives by state, trans-state, and sub-state actors. Since the writing of the Outer Space Treaty, humanity has become aware of the real and present threat of impact events from minor planets such as asteroids and comets. Also, it appears to be within the proximate technological reach of both states and private entities to access and alter the orbits of near Earth asteroids (NEAs). The code provides no instruction to states as to how they should share data on natural impact threats. Neither does the code explicitly instruct states to report or author regulations for sub-national entities such as companies, NGOs or individuals to report intentions to alter the orbital characteristics of a minor planetary body. Already there at least two western firms, Planetary Resources, Incorporated (PRI) and Deep Space Industries (DSI), interested in asteroid mining, and they will likely be joined by others both in the West and other regions. Similarly, most of the major space powers are developing ideas for asteroid deflection, and the Association of Space Explorers has even brought it before the UN, yet the code is silent on this tremendously important matter. A code sympathetic to these ends would direct timely notification of any knowledge of a potential natural impact event, or any intention to alter the orbit of a celestial body such as an asteroid or comet by a state or any commercial or non-governmental organization operating under its flag or subject to its laws, which could affect the safety of Earth’s biosphere or safety of navigation.12

Active Debris Remediation (ADR): Responsible actors don’t just refrain from irresponsible actions; they also take responsible actions to proactively improve the environment for legal commerce and human activity. A code should incentivize contributions to the global public goods. With the anticipated vast expansion in launch activity likely to occur with the forthcoming revolutions in re-usable launch vehicles and hybrid launch systems and associated new markets (space tourism, propellant, space-resource utilization equipment, space-solar power, space habitats), merely refraining from debris-creating practices is going to be insufficient to prevent the Kessler Syndrome, where the density of debris and space objects mean that more collisions happen, creating still more collisions in a runaway effect. Such a syndrome can only be avoided if we vastly scale back our ambitions or develop an active debris remediation capability. The code fails to establish as a purpose or provide instruction for states to encourage the creation of a cooperative active debris remediation capability. No encouragement is provided for an actuarial/insurance-based or private/public-private-partnership approaches.

While the code is laudable in its emphasis on the problems of space debris, the language would be more satisfying if its language had a deeper acknowledgement of the concern for human life and habitation in space, anticipating a future of commercial space on-orbit facilities (“space tourists”) and eventually large on-orbit habitats. Designs for such habitats date to the 1970s and are the subject of annual student design competitions such as the Asian Regional Space Settlement Design Competition as well international competitions sponsored by NASA and the NSS where students from China, India, and Japan regularly compete.

A code that has a positive vision of commerce in space would have an explicit mention of the expansion of human commerce.

Commerce: The code is also fundamentally disappointing in its securitized, state-centric approach, and fails to acknowledge the important role that governance and conduct between states has in structuring and sustaining a market to enable all legitimate commerce. Most Asian states have domestic and foreign policies centered on growth and inclusive growth, and recognize the fundamental utility of private industry. The code, as written, does not set forth as a purpose of transparency and confidence-building to create a stable climate for industrial growth, development and human habitat expansion; it has essentially no focus on a positive vision of commerce in space.

A code that has a positive vision of commerce in space would have an explicit mention of the expansion of human commerce. Its guiding principles would affirm proper respect for the activities of commercial firms. It would be specific about responsibility of states to regulate non-governmental commercial activities and the safety and security of citizens chartered from their states. It would instruct subscribing states to author regulations to ensure commercial and non-governmental operators refrain from the same irresponsible behavior. It would affirm the importance of establishing rights to reasonable safety and exclusionary zones to encourage safe operations and early entrants. It likely would affirm the desirability of advanced propulsion systems (such as nuclear) to provide greater access and maneuverability in the solar system and beyond.

Space Traffic Management (STM): Asia, which values harmony and collaborative structures, may be less than comfortable with a code that even at its most ambitious seems fundamentally anarchic in the long term with respect to basic space traffic management. The code does advance things by encouraging self-reporting, but the reality is that technology will and should allow a real, global space traffic control system within the cislunar system similar to what exists in the air and on the sea. The Asian states might feel more comfortable with a code that affirms the goal of a true space traffic management system.

Such a system could include four components similar to air traffic management: established safety zones, passive and active surveillance, communications/control system, and traffic managers. A broader vision of a space traffic management system would create an organizing incentive for collaboration between states and commercial entities on space situational awareness (SSA)—knowing what spacecraft are where—and conjunction analysis systems—knowing when satellites may pass close enough to collide.

A code affirming an orderly domain would instruct states to endeavor to maximize the participation of all government and non-government objects in a transparent space management system, except where such assets constitute critical national technical means or military capabilities which will, nevertheless, proceed with all due regard for the safety of navigation of other parties who are not a party to such action.

The current draft of the code is severely flawed in its essence and focus and suffers from serious “sins of omission,” particularly the sins of failing to recognize the fundamental purposes, ambitions, and vision of all three Asian space powers, as well as a range of pro-active purposes that address ongoing trends.

Due Regard: Sovereign national instrumentalities such as military craft are exempted from civilian air traffic control systems when their mission requires it. Nevertheless, it is considered responsible for them to proceed “with due regard” for the safety of navigation of civilian commerce. A code that affirms the desire for a space traffic management system that increases overall transparency but establishes a norm of “due regard” might be the best balance for the Asian space powers who likely favor growth and order for commerce, but who nevertheless must cope with security dilemmas where freedom of maneuver provides comfort.

So, if we are to evaluate the code from a long-term civilizational perspective, or from a collective attempt to enable and secure global public goods, we find the current draft of the code is severely flawed in its essence and focus and suffers from serious “sins of omission,” particularly the sins of failing to recognize the fundamental purposes, ambitions, and vision of all three Asian space powers, as well as a range of pro-active purposes that address ongoing trends.

However, from the perspective of the authors—who hope to establish norms which protect our dependence on space and to encourage cooperation and transparency to lessen the chance of conflict in space—as well as from the Asian space powers, these omissions should be considered “not a bug but a feature.”

These omissions are fortunate because they provide a substantive, positive, and face-saving way out of the current situation, providing ample latitude for meaningful alteration of the code without compromising the fundamental starting purposes of its originators, creating norms that, in the words of the latest draft of the ICOC, “enhance the safety, security, and sustainability of outer space activities” and “safeguard the continued peaceful and sustainable use of outer space for current and future generations,” through greater transparency and more responsible practices with regard to interference and debris—which ultimately, is to the benefit of all mankind.

4 The security dilemma, also referred to as the spiral model, is a term is used in international relations and refers to a situation in which actions by a state intended to heighten its security, such as increasing its military strength or making alliances, can lead other states to respond with similar measures, producing increased tensions that create conflict, even when no side really desires it. Concept credited to Jervis, R. “Cooperation under the Security Dilemma,” World Politics vol. 30, no.2 (January 1978), pp. 167–174; and Jervis, R. Perception and Misperception in International Politics (Princeton, N.J.: Princeton University Press, 1978), pp. 58–113

12 Some think Article 5.1 of the Code is adequate, at least in respect of other Subscribing States.

Lt Col Peter Garretson is a transformational strategist at Headquarters US Air Force, Pentagon, Washington, DC. He served two years as a strategy and policy advisor to the Chief of Staff of the Air Force on space, technology, energy, and US grand strategy, and two years as Division Chief for Irregular Warfare Strategy and Policy. Prior to that, he served 16 months as the first serving US officer on a Council on Foreign Relations (CFR) International Affairs Fellow at India’s Institute for Defense Studies and Analysis (IDSA) where he researched innovative paths forward for US-India Space cooperation. Prior to his fellowship he served four years in the US Air Force’s Directorate of Strategic Planning as the Chief of Air Force Future Technology and Deputy Director for Air Force Transformation, charged with looking 30–50 years into the future at the key trends and technologies that would shape conflict and statecraft. Lt Col Garretson spent time at America’s premier institutions of technical innovation, as a Service Chief appointed intern to the Defense Advanced Projects Agency (DARPA), and as a Service Academy Research Associate at America’s Los Alamos national nuclear laboratory (LANL). He is senior pilot, winner of the NSS Space Pioneer award, and award winning author on air and space power strategy. The views expressed are those of the author and do not necessarily reflect the official policy or position of the Department of the Air Force or the US government.